Official Secrets Act and Contemporary Relevance

The OSA came into light after the recent event of the TRP scam with the involvement of Republic TV owner and editor-in-chief, Arnab Goswami, and BARC former-CEO, Partho Dasgupta. The investigation revealed a set of whatsapp chats between Arnab and Dasgupta which revealed that Arnab knew about the Balakot airstrike three days in advance. Accusations were made that he violated the Official Secrets Act for allegedly aiding the leak of sensitive national security information.

The Official Secrets Act, 1923 has been in the media because of the debate on the Rafale deal in India. The Government of India has looked to legally proceed against paper offices, including The Hindu and ANI for disregarding the Official Secrets Act, 1923. The reports distributed by these paper offices proposed that the arranging group and Ministry of Defense contradicted the Rafale bargain, and the public authority didn’t follow the due methodology of acquisition. The government guarantees that these paper offices have abused the standards of the said Act by distributing the reports and records identified with France to purchase 36 Rafale jets. Accordingly, the government challenges the action of the paper offices in the courtroom as they have abused the standards of the Official Secrets Act, 1923. The paper organizations with all due respect have raised the Right to Information Act, 2005 as their right.

What is the Official Secrets Act?

OSA has been law since the British period. The essential demonstration was The Indian Official Secrets (Act XIV), 1889. This was brought with the crucial objective of smothering the voice of incalculable papers that had come up in a few dialects, and were negating the Raj’s methodologies and strategies, thereby building political awareness and going up against police crackdowns and prison terms. This was reexamined and made more rigid in The Indian Official Secrets Act, 1904, during Lord Curzon’s time as Viceroy of India. In 1923, another adaptation was prompted. The Indian Official Secrets (Act No XIX of 1923) contacted all issues of mystery and privacy in organization of the country. It widely oversees two perspectives — spying or secret activities, covered under Section 3; and divulgence of other arranged information of the public position, under Section 5. Classified information can be any authority code, secret key, sketch, plan, model, article, note, record, or information. Under Section 5, both; the individual granting the information, and the individual tolerating the information can be rebuked. For arranging a report, an administration Ministry or Department follows the Manual of Departmental Security Instructions, 1994, not under OSA. Likewise, OSA itself doesn’t say what a ‘mystery’ archive is. It is the public authority’s circumspection to choose what falls under the ambit of a ‘mystery’ archive to be charged under OSA. It has frequently been contended that the law is in direct clash with the Right to Information Act, 2005.

OSA and Rafale Controversy

The rafale controversy gained another spark after The Hindu published an article which revealed documents that the government claims to be confidential resulting into the accusation of The Hindu for violating the Officials Secrets Act. Attorney General K.K. Venugopal told the Supreme Court that classified documents pertaining to the controversial Rafale deal had been “stolen from the defense ministry either by former or present employees”, and hence, “can’t be in the public domain”.

“We are investigating how these documents were stolen,” the government told the apex court, referring to reports by The Hindu, which relied on these ‘secret’ documents. According to Venugopal, whoever had accessed and supplied these documents to the newspaper was in violation of the Official Secrets Act, 1923 (OSA). However, the SC remarked that the “government can’t hide behind the Official Secrets Act”. The SC was hearing a batch of pleas seeking a review of its own December 2018 judgment that: the Indo-French government-to-government deal to acquire 36 Rafale fighter jets didn’t need scrutiny.

The OSA’s wording allows for its application in an ambiguously wide range of circumstances. It has been used to prosecute journalists for exposing government ‘secrets’, and has clashed repeatedly with transparency laws and the Right to Information Act, 2005 (RTI).

Section 5 of the OSA, which deals with the “wrongful communication of information”, turns the Act “into a catch-all legal provision converting practically every issue of governance into a confidential matter”, as the M. Veerappa Moily-headed second Administrative Reforms Commission (ARC) wrote in a 2006 report. The ARC wrote, “As per this section, any person having information about a prohibited place, or such information which may help an enemy state, or which has been entrusted to him in confidence, or which he has obtained owing to his official position, commits an offence if (s)he communicates it to an unauthorised person, uses it in a manner prejudicial to the interests of the state, retains it when (s)he has no right to do so, or fails to take reasonable care of such information.

OSA and TRP scam

The event of the TRP scam with the involvement of Republic TV owner and editor-in-chief, Arnab Goswami and BARC former-CEO, Partho Dasgupta sparked the debate with respect to applicability of OSA. Whatsapp conversations between Goswami and Dasgupta reveal many conspiracies & unprecedented access to power in this govt; gross abuse of his media & his position as power broker.

Goswami tells Dasgupta that he had confirmed information about India planning a cross-border strike on Pakistan in retaliation for the Pulwama terror attacks on CRPF troopers. “Even the date and time stamps on this message show that this chat happened 3 days before the Indian Air Force conducted an air strike on Balakot in Pakistan on February 26, 2019,” the Congress memorandum said. Both leaders informed Deshmukh how it was a matter of serious concern that Goswami was not only privy to information of the highest secrecy regarding national security operations of the armed forces but was also openly sharing it with Dasgupta, and it is not known as to how many other people he (Goswami) may have leaked these secrets to.

“Goswami’s actions are a clear violation of Section 5 of the OSA, 1923 which forbids a person with knowledge of classified national security operations from revealing them to unauthorised persons,” the two leaders said. Besides, the OSA, 1923 vests the power of investigating and prosecuting offences related to Sec. 5 with the concerned state government.

OSA and RTI

There is a differentiation between these two Acts as the Official Secrets Act, 1923 was brought in India for keeping things confidential  against the functions of the government and the RTI was set up in India to get transparency and responsibility for the activities of the specialists and Government of India. In this way, the genuine contrast between these two is about the activities and move of societies of the two systems. Be that as it may, there are sure arrangements cherished under the RTI Act, which don’t allow the Official Secrets Act to override it for public use and decrease the maltreatment of force. In this manner, RTI isn’t pertinent to all the data and reports of the public authority as the data should be ‘public power’ to come surprisingly close to the RTI Act. As per the provisions of the Right to Information Act, 2005, if there is a conflict between the two laws, the public interest will win. Section 8(2) of the RTI Act, 2005 states that despite anything contained in the arrangements of the Official Secrets Act, 1923, nor any exclusions permissible in the provisions of Section 8(1) of the RTI Act, a public authority has a privilege and is permitted to get to the data and archives, whenever accomplished for the public interest in huge or if the exposure exceeds the damage to the ensured interests. 

Further, Section 22 of the RTI Act counts that the provisions of the RTI Act will have impact despite anything against it, as referenced in the OSA, 1923 or some other law for the present, or in any instrument having impact by effect of some other law. Hence, the Right to Information Act is extremely huge in the current situation where a lot of corrupt acts are going on in the exercises of the government offices. The RTI Act was set up with the sole reason to give a privilege to data to residents of the country. Accordingly, the new provisions added to the Right to Information Act guarantee more prominent transparency and responsibility in the activities of the public authority.

The RTI Act, 2005 gives rules to the government and states that it is the obligation of the state to illuminate and reveal all the pertinent data and reports before the overall population, with the end goal of good administration and vote-based system. RTI is a principal right ensured under Article 19(1) of the Constitution of India. Along these lines, the residents of the nation reserve the option to have data with respect to the tasks of the public authority. The significant disadvantage of OSA is that there is an absence of definition of the term ‘mystery’ in the Act, and the public authority has the ability to proclaim any data or reports as mystery. The OSA generally promotes secrecy and privacy in government tasks which is against the provisions of the RTI. In some cases, records which are by and large saved aside with the end goal of mystery are essential in carrying it to the public notification. On each occasion, the OSA hampers the majority rules system in the public arena. Further, it is likewise certain that arrangements of the RTI abrogate the OSA. The provisions of OSA are in the way of RTI and there are a great deal of inconsistencies between the two laws.



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Kirit P. Mehta School of Law Publications